A Superior Court judge has tossed out one of the 10 sexual assault and misconduct charges prosecutors brought against Bryon Hefner, the husband of former Senate president Stanley C. Rosenberg.
But the judge denied Hefner’s request to dismiss a more serious count alleging Hefner forcibly kissed another man.
Judge Robert N. Tochka issued his split decision after Hefner, 31, appeared in his Suffolk Superior courtroom last week, asking to throw out two counts — an open and gross lewdness charge and the indecent assault charge — ahead of his scheduled June trial.
Hefner has pleaded not guilty after a grand jury issued indictments against him in March 2018 alleging, among other things, he repeatedly groped two men against their will and boastfully showed nude photos of another.
The counts related to those specific allegations were not among those argued at the 10-minute hearing last Wednesday.
Hefner’s attorney, Tracey A. Miner, quoted the iconic movie “Casablanca” in seeking to toss the assault charge, saying, “Sometimes a kiss is just a kiss.”
Prosecutors say Hefner “aggressively” kissed a man against his will after a gathering on a Boston roof deck. Miner said people had been drinking and said Hefner claimed “it was a joke.”
“It may have been unwanted,” Miner said of the charge. But, she said, “if every social kiss that is unwanted after a social event is a felony charge in Massachusetts, let’s keep the courts open 24/7,” Miner said.
She similarly argued that an open and gross lewdness count didn’t rise to the level of a felony, which requires that a person must be “alarmed or shocked.”
Prosecutors alleged that Hefner exposed his genitals and buttocks to another man after trying to climb into bed with him multiple times. The alleged victim had been friends with Hefner, and testified to a grand jury that he was upset — not by what he saw, but that “something in [Hefner’s] head told him that it was a normal way to get my attention,” according to Miner.
A prosecutor in Attorney General Maura Healey’s office had urged Tochka not to dismiss either count.
In a brief ruling included in the case docket, Tochka said a grand jury had “insufficient probable cause” in indicting Hefner on a charge of open and gross lewdness.
But Tochka upheld the charge of indecent assault and battery — one of five that Hefner faces — saying that after reading the grand jury minutes and arguments filed by attorneys, all of which has been sealed from public view, he found that prosecutors presented “sufficient evidence.”
Healey’s office declined comment on the ruling Monday.
Miner said Monday she had yet to see the opinion, but cheered the judge’s decision to dismiss at least one of the charges.
“We are very happy to have one of the charges against Mr. Hefner dismissed under a very difficult standard for the defense to meet,” she said in an e-mail to The Boston Globe. “The judge’s ruling basically says that there was no [probable] cause to believe that the crime charged was committed based on the evidence presented to the grand jury.”